Nevins v. New Hampshire Department of Resources & Economic Development

792 A.2d 388, 147 N.H. 484, 2002 N.H. LEXIS 17
CourtSupreme Court of New Hampshire
DecidedMarch 11, 2002
DocketNo. 2000-149
StatusPublished
Cited by4 cases

This text of 792 A.2d 388 (Nevins v. New Hampshire Department of Resources & Economic Development) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nevins v. New Hampshire Department of Resources & Economic Development, 792 A.2d 388, 147 N.H. 484, 2002 N.H. LEXIS 17 (N.H. 2002).

Opinion

DUGGAN, J.

The plaintiffs appeal from an order of the Superior Court (McGuire, J.) granting summary judgment to the defendants, the New [485]*485Hampshire Department of Resources and Economic Development (DRED), the commissioner of DRED, and the administrator of the land management division. The court denied the plaintiffs’ request to declare that the defendants acted illegally in permitting the erection of a 180-foot telecommunication tower on the summit of Mt. Kearsarge and refused to order removal of the tower. We affirm.

In 1949, the Society for the Protection of New Hampshire Forests deeded to the State of New Hampshire several hundred acres of land near the summit of Mt. Kearsarge. When the State acquired this parcel, a fire tower and a navigation beacon tower were located on the summit. After acquiring the land, the State installed a State police radio communication antenna. Thereafter, a number of public entities installed additional towers and communication facilities on the summit.

In 1964, the State adopted a statement of policy concerning the use of state land for radio and television antenna sites. The statement acknowledged the increasing need for antenna sites and the fact that all available sites may be needed to meet the demand for public installations. The stated objective of the policy was to protect the existing communications interest of the State and to provide for the future needs of agencies responsible for public safety and/or public service. The policy established a State Radio-Electronics Committee and set forth guidelines for considering applications. Although the policy limited new installations to public agencies, it noted that requests from private agencies would be considered if they provided a public service or a benefit to public safety.

In 1982, DRED adopted administrative rules relating to the installation of radio and television antenna sites located on state land. See N.H. Admin. Rules, Res-F ch. 800. These rules included many portions of DRED’s 1964 policy statement such as the establishment of a State Radio-Electronics Committee, guidelines for application consideration and installation requirements. See N.H. Admin. Rules, Res-F 801.01 to 804. Like the policy, the rules explained that applications for leasing state lands to private agencies would be considered only where the installation would provide a measure of public safety or public service. See N.H. ADMIN. Rules, Res-F 801.1. Because these rules were not readopted, they eventually lapsed.

In 1989, DRED adopted a new policy pertaining to the erection of communication facilities on State-owned mountaintops. The policy noted that additional concerns had developed in the 1980s regarding communication facilities on State-owned summits. The concerns related to protecting the aesthetics and natural conditions of the State’s high peaks and ridges, growing electronic interference and signal deterioration due to increased numbers of installations and the potential threat to public health [486]*486from intense signal emissions. The .policy designated sixteen mountains, including Mt. Kearsarge, where development of communication facilities would be allowed. The policy also barred new private users from installing communication facilities on State-owned mountaintops.

In 1995, DRED revised its policy by increasing the number of mountains where the development of communication facilities is allowed to seventeen. The revised policy also allowed new private users to install communication facilities on State-owned mountaintops if the private user met certain requirements.

In 1996, the department of safety (DOS) notified DRED of its intention to develop and install a statewide radio system. DRED agreed to cooperate with DOS in implementing the new system, and the two agencies executed a Memorandum of Understanding in July 1997. As negotiations continued between the agencies, DRED received a proposal from U.S. Cellular to lease space on the summit of Mt. Kearsarge. In return for permission to locate cellular communication equipment on Mt. Kearsarge, U.S. Cellular agreed to construct a new tower according to DOS’s specifications and to donate the tower to the State upon completion. Ultimately DRED and U.S. Cellular entered into a five-year lease involving the construction of a new 180-foot telecommunication tower and associated equipment building. The Governor and Council approved the lease and construction of the tower was completed during the fall of 1997.

In 1998, the plaintiffs, Neil Nevins and other individuals who own property facing Mt. Kearsarge and/or enjoy recreational interests in Mt. Kearsarge, petitioned the superior court for declaratory and injunctive relief alleging that: (1) DRED exceeded its statutory authority; and (2) DRED was required to adopt rules under RSA 227-G:4 (2000). Both the plaintiffs and the defendants sought summary judgment. The superior court granted the defendants’ motion, ruling that DRED was “authorized by RSA 227-H:9 [2000] to contract to erect the tower on Mt. Kearsarge” and that because DRED acted “pursuant to specific statutory authority... a rule was not necessary.” After the superior court denied the plaintiffs’ motion for reconsideration, this appeal followed.

In reviewing a grant of summary judgment, we will affirm the judgment if the evidence reveals no genuine issue as to any material fact and if the moving party is entitled to judgment as a matter of law. See RSA 491:8-a, III (1997). “As no material fact is in dispute on appeal, we need only determine whether the moving party was entitled to judgment as a matter of law.” N.E. Tel. & Tel. Co. v. City of Rochester, 144 N.H. 118, 120 (1999) (quotation and brackets omitted).

The plaintiffs assert that RSA 227-G:4, I, requires DRED to formally adopt rules governing its management of mountaintop communication [487]*487facilities. RSA 227-0:4. I, provides that “[t]he commissioner [of DRED] shall adopt rules, under RSA 541-A relative to ... [t]he management of reservations, pursuant to RSA 227-H.” Although the granting of privileges and concessions is part of DRED’s management of State reservations pursuant to RSA chapter 227-H (2000), the superior court determined that DRED is not required to promulgate rules because RSA 227-H:9 specifically authorizes the commissioner of DRED to make contracts for the leasing; of privileges and concessions on State reservations.

In Stuart v. State, 184 N.H. 702, 705 (1991), we explained that promulgation of a rule pursuant to the APA rulemaking procedures is not necessary to carry out what a statute demands on its face. In Smith v. New Hampshire Board of Psychologists, 138 N.H. 548, 553 (1994), we reiterated this rule in determining that, despite the expiration of its rules, the board of examiners of psychologists retained authority to initiate disciplinary hearings against the plaintiffs because of its “clear statutory authority to initiate and conduct disciplinary proceedings.”

Subsequent cases have affirmed that “[p]romulgation of a rule pursuant to RSA chapter 541-A is not necessary to carry out what a statute authorizes on its face.” Petition of Smith, 139 N.H. 299, 307 (1994); see also Appeal of Morgan, 144 N.H. 44, 51 (1999); Petition of Rattee, 145 N.H. 341, 347 (2000). But cf. Appeal of Behavior Science Institute, 121 N.H.

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Bluebook (online)
792 A.2d 388, 147 N.H. 484, 2002 N.H. LEXIS 17, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nevins-v-new-hampshire-department-of-resources-economic-development-nh-2002.